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ADMINISTRATIVE LAW CODIFICATION of the GROUNDS of JUDICIAL REVIEW Janice J

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ADMINISTRATIVE LAW CODIFICATION of the GROUNDS of JUDICIAL REVIEW Janice J ADMINISTRATIVE LAW CODIFICATION OF THE GROUNDS OF JUDICIAL REVIEW Janice J. Tokar* I. Introduction An option which may be considered by those involved in the statutory reform of judicial review is codification of the grounds upon which an administrative act or decision may be reviewed by the courts. It is important to note at the outset that codification is not a peripheral issue; rather, it is intimately related to the fundamental structure of any statutory reform which may be recommended in the area of judicial review. The larger question which is raised by the issue of codification is whether or not it is desirable to retain reference to the forms of relief which presently govern review — certiorari, prohibition, mandamus, injunction and decla- ration — or to fashion a new remedy which dispenses entirely with reference 1984 CanLIIDocs 129 to these remedies. Presently, the forms of relief developed by the courts themselves incor- porate much of the substantive law of judicial review. For example, an application for certiorari entails a certain rule of locus standi ("person aggrieved"), specific grounds upon which the remedy is available (jurisdic- tional error and error of law on the face of the record), the type of decision which may be challenged (traditionally, judicial or quasi-judicial only, although recent decisions have extended the scope of the remedy to admin- istrative decisions, at least regarding procedural fairness), the type of body against which the remedy may be sought (not restricted to suable entities; questionable if available against the Crown; unavailable against domestic tribunals), and the relief available to the applicant (quashing the decision or order). An action for a declaration brings with it a different substantive law: locus standi (traditionally, interference with a private right of the plaintiff or special damage peculiar to the plaintiff), grounds (jurisdictional error but probably not non-jurisdictional error of law), type of decision (judicial, quasi-judicial, legislative or administrative), type of defendant (suable entities only; available against the Crown; available against domes- tic tribunals), and relief (declaration of invalidity). Reform that provides for a single procedure for seeking the traditional forms of relief, or that creates a new remedy the availability of which is determined by reference to the old remedies, will impliedly incorporate the substantive law attached to those remedies, including the grounds upon which the various forms of relief are available. (Of course, modifications to this piggyback substantive law could be effected by legislative enact- • B.A., LL.B., of the Manitoba Bar. This article is based on a background paper prepared for The Manitoba Law Reform Commission in May, 1983. The views expressed are those of the author, and do not necessarily reflect the views of the Commission. 172 MANITOBA LAW JOURNAL VOL. 14 ment.) If, however, it is viewed as desirable to dispense entirely with the old forms of relief, consideration should be given to codifying locus standi, the grounds of review and other substantive law matters. While the focus of this article will be on codification of the grounds for review, it is submitted that this issue cannot be divorced from the larger question of the general structure of judicial review reform. Accordingly, the desirability of codification will be examined in this broader context. H. The Grounds of Judicial Review Judicial review "is based on a fundamental principle, inherent through- out the legal system, that powers can be validly exercised only within their true limits".1 Accordingly, in judicial review proceedings the court does not examine the merits of an administrative act or decision to determine if it was `right or wrong';2 rather, the court concerns itself with the legality of the act or decision. If an administrative authority has acted within its pow- ers and according to law, the court will not interfere. The formulation and categorization of the grounds of review vary widely in both case law and academic texts. Articulated on the most general level, 1984 CanLIIDocs 129 the grounds are: 1. that the action or decision is ultra vires (also referred to as 'juris- dictional error'); 2. that an error of law is disclosed on the face of the record; 3. that there has been a breach of the rules of natural justice/pro- cedural fairness (although this ground is generally regarded as being subsumed by the doctrine of ultra vires3). This concise formulation may be contrasted with the following list, where the basic grounds are expressed in much greater detail:4 1. unconstitutionality of the statute purporting to confer the power; 2. improper appointment of decision-maker or official; 3. improper delegation of power; 4. non-compliance with rules of natural justice or failure to act in a procedurally fair manner; 5. failure to adhere to statutory procedural requirements; 6. error regarding matter preliminary or collateral to jurisdiction; 7. failure to deal with the proper question; 8. making a decision which the authority was not authorized to make; 9. wrongful declining of jurisdiction; 10. taking into account irrelevant considerations; 11. failure to take into account matter requiring consideration; 12. no evidence to support decision; 1. H.W.R. Wade, Administrative Law (5th ed. 1982) 36. 2. See for example, Patterson and Barker v. St. Boniface School Division No. 4 (1983), 19 Man. R. (2d) 51 (Man. C.A.). 3. H.W.R. Wade, supra n. I, at 38-43, 414-415. But see Harelkin v. The University of Regina. 11979] 2 S.C.R. 561. 4. This list, with the exception of "fraud by party', was compiled from the grounds as discussed by D.J. Mullan, Administra- tive Law (2nd ed. 1979). NO. 2, 1984 ADMINISTRATIVE LAW 173 13. bad faith; 14. exercise of power for improper purpose; 15. unreasonableness; 16. improper fettering of discretion; 17. fraud by party; 18. error of law on the face of the record. The above list is by no means a definitive statement of the grounds; it is but one expression of the flexible common law principles. III. Defects of the Present Law A. Forms of Relief 1984 CanLIIDocs 129 An imaginary system cunningly planned for the evil purpose of thwarting justice and maximizing fruitless litigation would copy the major features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decision of cases on their merits, such a scheme would insist upon a plurality of remedies, no remedy would lie when another is available, the lines between remedies would be complex and shifting, the principal concepts confusing the boundaries of each remedy would be unde- fined and undefinable, judicial opinions would be filled with misleading generalities, and courts would studiously avoid discussing or even mentioning the lack of practical reasons behind the complexities of the system .° Couched in language perhaps more flamboyant than that customarily employed in legal circles, Davis nevertheless captures the sentiments expressed by most academics and law reform agencies who have addressed the problems of judicial review proceedings. The present system is need- lessly complex; the forms of relief are encrusted with technicalities created by history rather than dictated by reason. The complexities and distinctions bedevilling our present pluralistic system of remedies include the following: 1. The rules of locus standi vary from remedy to remedy, with the standing requirements for injunctive and declaratory relief being traditionally the most stringent. In addition, the rules for each individual remedy suffer from a lack of consistency in their for- mulation. There is, however, an apparent trend in the common law toward a more liberal, discretionary approach to standing which is eroding, to some degree, the differences in locus standi require- ments among the remedies. 2. Certiorari and prohibition have in recent tradition been available only to challenge those functions characterized as judicial or quasi- 5. K.C. Davis, Administrative Law Text (3rd ed. 1972) 458. 174 MANITOBA LAW JOURNAL VOL. 14 judicial. The task of classifying a function as `judicial' or `quasi- judicial', as opposed to `administrative' or `legislative', is noto- riously plagued with difficulty. Whether the decision of the Supreme Court of Canada in Marti- neau v. Matsqui Institution Disciplinary Boards has cleared the way for the emergence of certiorari and prohibition as general all- purpose administrative law remedies remains to be seen. A cau- tious reading of the case would indicate that certiorari and prohibition are available to challenge the exercise of judicial and quasi-judicial powers on any basis, and the exercise of administra- tive powers on the ground of procedural fairness. The availability of injunction, declaration and mandamus is not dependent upon the judicial/administrative/legislative conundrum. 3. While certiorari will issue to quash a decision where there is a non-jurisdictional error of law on the face of the record, there is some doubt as to whether a declaration is available on this ground.' 1984 CanLIIDocs 129 4. There is some support for the proposition that a declaration or injunction will not be granted in circumstances where a prerogative remedy is available.' The declaration, however, is now emerging as an alternative to the prerogative remedies in some cases,' Still, in Manitoba at least, the injunction appears to be inappropriate in circumstances where prohibition is available.10 5. The prerogative forms of relief are generally available only against bodies which derive their powers from statute. The injunction and declaration are appropriate to challenge the actions of both sta- tutory and domestic bodies. 6. An injunction will issue only against a suable entity." This may also be true of the declaration when sought in an action." The prerogative remedies will issue against entities which do not have the capacity to be sued. 7.
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